On the same day, one whistleblower gets to sue the government and another gets 35 years in prison

In separate decisions handed down last Wednesday, courts gave starkly different treatment to two whistleblowers, highlighting oddities in First Amendment law.  

In one case, Dahlia v. Rodriguez, whistleblower Angelo Dahlia (a police officer) alleged he was punished by his superiors for telling his union and outside law enforcement about misconduct within his department.  The Ninth Circuit ruled in a rare en banc opinion that Dahlia could proceed with a civil rights claim that he was unjustly retaliated against for disclosing the conduct of his fellow officers, ruling that “often ... unless public employees are willing to blow the whistle, government corruption and abuse would persist undetected and undeterred.”

US Supreme Court cases craft a weird rule in First Amendment law:  if a government worker blows the whistle inside a government body's chain of command as part of his or her official duties, then the First Amendment generally will not protect the worker's speech, but if the worker blows the whistle to outside sources -- including the media -- the First Amendment generally will offer protection if the speech is of sufficient public concern.  Same speaker, same information, but different audience = different rules. That helps explain the result in the Dahlia case, but what about the other decision handed down on Wednesday?

In the other -- and far more famous -- case, soldier Bradley (now Chelsea) Manning, was demoted, dishonorably discharged and sentenced to 35 years in prison for telling the media (via Wikileaks) about government misconduct, including the killing of civilians in Iraq.

In both cases, the whistleblower went outside the chain of command.  Why is Dahlia looking forward to redemption for the retaliation he faced, while Manning is looking forward to the better part of his life in Fort Leavenworth?

An easy distinction is that Manning disclosed classified information.  That is too easy.  What if a police department simply called its actions and conduct "classified"?  Surely, that label alone cannot be the end of the analysis.

Manning says she revealed classified information, "out of a love for my country and my sense of duty to others," in an effort to make a positive difference in policies and awareness of government conduct.  Dahlia didn't like the way his fellow officers were treating suspects in custody.  The Ninth Circuit applied a fact-specific inquiry to protect Dahlia's speech.  There was no protecting Manning's speech.

Something is not right with these rules and the discrepancies in last week's decisions.  They simply cannot be reconciled from a constitutional perspective.  There ought to be greater First Amendment protections for reporting inside the chain of command and there ought to be at least some protections on a case-by-case basis even in the military context for whistleblowing outside the chain of command.

Or else, as the Ninth Circuit put it in the Dahlia case, "government corruption and abuse" will "often ... persist undetected and undeterred.”

The holes in Ellen Kardashian's defamation lawsuit against the Kardashian clan

Last week, Ellen Kardashian, the widow of famed attorney Robert Kardashian and step-mother of celebutantes Kim, Khloe and Kourtney Kardashian, sued Bunim-Murray Productions, Ryan Seacrest Productions and various members of the Kardashian family, including the three Kardashian daughters and their mother, Kris Jenner, for defamation and other claims.  On its face, the Complaint is weak.

The bulk of the Complaint targets statements purportedly made during an episode of "Keeping Up With The Kardashians," which Ellen alleges, without supporting detail, was "orchestrated" and "carefully scripted" by the defendant production companies. 

The lawsuit mainly complains about the following allegedly false statements: 

• That Ellen bad-mouthed several members of the Kardashian family.  Ellen's response:  I didn't say those things ... my late husband did.  So Ellen may well believe those statements are true, but she wants it to be clear that she did not say them.  It is possible to bring a defamation claim for misattributing a quote, but it is not clear how Ellen was or could have been damaged by this alleged misattribution when she does not disavow the underlying statement. 
• That Ellen married Robert in his home as he was dying, and they were only married for a few weeks.  In the Complaint itself, Ellen alleges that they were married in Robert's home 10 days after Robert was diagnosed with esophageal cancer and just a few weeks before his death.  It seems that the Complaint alone would support a winning substantial truth argument -- i.e., that it is substantially true Ellen married Robert in his home as he was dying, and that he died shortly after their marriage.
• That Ellen married Robert when he was in his pajamas.  First, it is not remotely clear that such a statement is defamatory toward Ellen -- maybe toward Robert for not dressing up a little more -- but then Ellen goes on to insist that Robert was not in his pajamas, but was actually in a "'Tommy Bahama' style shirt." I see, so maybe this case should be called the "Pajama vs. Tommy Bahama" lawsuit. That has a nice, melodic ring!
• That Ellen was sued and attempted to evade service.  Ellen complains that Kris Jenner wanted to "press charges" against her.  A lay person might easily confuse a civil suit with the concept of "pressing charges" in the criminal sense, and the Kardashian/Jenner clan did, in fact, sue Ellen.  Ellen sought permission from the court to countersue, but withdrew that effort in favor of filing this new lawsuit two days later.  Also, calling Ellen a "slippery snake" for supposedly not wanting to be served is a matter of opinion.

The defamation claim is weak because -- although I don't know the underlying facts -- the Complaint itself suggests that all of the statements were either substantially true or protected opinion.   Moreover, Ellen, who is almost certainly at least a limited purpose public figure, will have to prove that the defendants acted with actual malice (i.e., knowledge of falsity or reckless disregard for the truth).  That will be especially difficult for Ellen to show against the producers because, among other things, they could most likely reasonably rely on the Kardashians as witnesses to the underlying events, many of which happened years ago.

The other claims in the Complaint are also weak.  Ellen alleges the public disclosure of private facts, but then asserts that the underlying "facts" are false.  Which is it?  Are they facts or are they false?  I've seen this before:  you can't base a defamation claim and publication of private facts claim on the same underlying allegations.  They are mutually exclusive.

The intentional infliction of emotional distress claim is a virtual throw-away.  A plaintiff cannot evade the strictures of a defamation claim by restyling it as a claim for intentional infliction of emotional distress.  Remember the movie The People vs. Larry Flynt?  That's what that whole Supreme Court scene was all about.  Here's the Supreme Court decision in case you want to check.

And, finally, a claim for "conspiracy to defame"?  No such thing.  Conspiracy is not an independent claim in California.

This is what self-censorship looks like

Two weeks ago, I explained how the NSA surveillance program threatens First Amendment rights, including the chilling of speech because of the fear of government surveillance. This week, two secure email providers shut down.  This morning, The Guardian revealed that, through a loophole in the law, the NSA can see your emails and listen to your phone calls without a warrant.  This afternoon, President Obama vowed to make changes to the NSA system. 

The part in the middle (about the secure email service providers shutting down) shows how this dramatic script evolves into a free speech snuff film.

Lavabit.com, a provider used by leaker Edward Snowden, shut down its secure email service yesterday.  The founder, Ladar Levison, explained his dilemma:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit ... I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests. ... I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

No more Lavabit means no more speech on Lavabit. 

So, why don't Lavabit's users just go somewhere else ... like Silent Circle, another secure email provider?  Oh, yeah, Silent Circle also announced its "preemptive" shut down this week:

Silent Circle has preemptively discontinued Silent Mail service to prevent spying.  ... the less of your information we have, the better it is for you and for us.  ... We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.

Another such provider, TorMail, is gone too.

I don't (I mean didn't) use any of these services, but I might like to.  I might like to think that maybe, just maybe, there is a way for me to communicate without warrantless spying by the NSA.  Sadly, I now have to catalog those wishes and hopes along with being a good basketball player and owning a Ferrari -- i.e., things that ain't too likely.

Taxing Lap Dances: A Risque Threat To Speech Everywhere

The U.S. Supreme Court is considering whether to take the case of 677 New Loudon Corp. v. State of New York Tax Tribunal, following a decision from New York's highest court holding that the government may tax erotic dancing but not other forms of dancing.  

The government should not tax some forms of expressive conduct more than others.  The Supreme Court should take the case and reverse the New York court's decision.

The Supreme Court recognizes that nude dancing is "expressive conduct within the outer perimeters of the First Amendment."  And, the Supreme Court has held that "official scrutiny of the content of [speech] as the basis for imposing a tax is entirely incompatible" with the First Amendment.  Put these two rules together, and taxing authorities should not be able to discriminate between nude dancing and other forms of dancing.

The New York high court was sharply divided 4-3.  Although New York's tax scheme exempts "choreographic" and "dramatic or musical arts" performances, New York's tax authority decided to impose a tax on establishments where women perform private lap dances and pole dances.  The dissent said it was clear that dancing was exempted, and saw no constitutional distinction between "highbrow dance and lowbrow dance" because "a dance is a dance."  The dissent is right.  Such discrimination between expressive acts is not constitutional.

This issue is broader than just nude dancing.  Yesterday, Media Coalition, a conglomeration of media organizations, filed an amicus curiae brief encouraging the Supreme Court to take the case.  Media Coalition began its brief with the provocative question: "May a State impose a sales tax on tickets to the Broadway musical Mamma Mia, while exempting tickets to Rigoletto?”  That is a fancy way of saying: may the government tax speech based on its content -- whether that content is found in video games, the silver screen, books or a "gentleman's club"?  Nope ... not constitutional. 

This issue also is broader than just what happens in New York.  The Supreme Courts of Illinois, Utah and Texas also approve discriminatory taxes based on the content of speech, and a few other state legislatures are considering such laws.  A few weeks ago, Philadelphia decided to extend its "amusement tax" to lap dancing. 

Former Chief Justice John Marshall wrote nearly two hundred years ago that "the power to tax is the power to destroy."  Businesses featuring lap dances should not be unduly taxed for featuring their particular brand of free speech.  As the dissenters in New York's case found, it would not be constitutional to tax Hustler while leaving The New Yorker untaxed.  The bottom line is that taste and taxes do not mix.   
 
  

Pen vs. Sword a/k/a First Amendment vs. Second Amendment

How, you may think, can the First Amendment's free speech provision be in conflict with the Second Amendment's right to bear arms?  Look to the land of "stand your ground" plus televised trials.  Look to Florida.

In Wollschlaeger v. Florida, the Eleventh Circuit Court of Appeals is considering whether a Florida law preventing doctors from asking patients about gun ownership violates the First Amendment.  The district court enjoined the law, Florida Statute sec. 790.338, which provided that a health care practitioner "should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient" unless such information is "relevant" to medical care or safety.  

The State of Florida is defending its law in the "Docs vs. Glocks" case, claiming that a thoroughly undramatic series of anecdotes commanded the necessity of this obscure provision.  For example, doctors supposedly declined to treat at least two people who refused to say whether they owned guns.  Really?  Why would a doctor do that?  It seems hard to fathom.  Is it possible there is a little more back-story there?  

The law also states that doctors "should refrain from unnecessarily harassing a patient about firearm ownership during an examination."  Oh please.  Are we really supposed to believe there is an epidemic of gun-bashing doctors hell-bent on refusing to uphold their Hippocratic oath? 

Florida insists that its law allows doctors to counsel patients on gun safety.  The problem is the doctors are not supposed to ask if guns are even present in a patient's home, so that puts doctors in the position of either counseling everyone or no one about gun safety or making potentially inappropriate guesses about who needs a talking to about guns.

Another fundamental problem is that the law is vague, leaving doctors to guess whether the medical board -- which has the power to sanction doctors for violating this law -- will later agree that the questions were "relevant."

I understand that lots of people are fervently pro-gun rights, but it is not necessary to take away a doctor's First Amendment rights -- let alone interfere with a doctor's ability to counsel and advise patients -- in order to keep guns.  

Doctors should not be so micromanaged by the government concerning their examinations.  They should be able to ask questions about gun ownership in the confines of the doctor-patient relationship rather than be chilled from asking questions for fear of later disciplinary action.   

I side with the Docs.

The Ninth Circuit's Irreconcilable Video Game Rulings

By Kevin Vick (guest blogger)          

The Ninth Circuit’s July 31 decisions in Brown v. Electronic Arts and Keller v. Electronic Arts cannot be reconciled with each other or the First Amendment.  

            Both lawsuits involve the alleged use of athletes’ likenesses in highly-popular video games.  The suits claim that popular Electronics Arts (EA) games Madden NFL and NCAA Football include players whose characteristics – e.g., jersey number, height, weight, skin tone, home state – are based on the attributes of real-life players such as plaintiffs Jim Brown (NFL Hall of Famer) and Samuel Keller (former University of Arizona and University of Nebraska quarterback).

            While the lawsuits are based on the same core allegations, they differed in one respect that determined the outcome.  The claims at issue in Brown were for alleged violations of the Lanham Act (the federal trademark and unfair competition law), while the claims in Keller were for violations of California’s common law and statutory rights of publicity, which gives the right to control your persona … within the confines of the First Amendment.  

The difference in the claims made all the difference, as the Ninth Circuit affirmed the dismissal of Brown’s lawsuit while holding that Keller can proceed with his case.  The principal reason: the Ninth Circuit applied different tests to the respective claims.  The different approaches cannot be reconciled under the First Amendment.

            For Brown’s Lanham Act claims, the court applied the test first set forth by the Second Circuit in Rogers v. Grimaldi.  The Rogers test provides strong free speech protections to creators – not just video games, but movies, books and other expressive works.  Lanham Act plaintiffs complaining about the alleged use of their name or likeness in expressive works must show that (1) the use has no artistic relevance to the work and (2) the work explicitly misleads consumers to believe that the plaintiff endorsed or sponsored the work.  This standard is difficult for plaintiffs to meet.  Defendants routinely defeat Lanham Act claims based on the Rogers test (as in Brown).   

            However, the Ninth Circuit held in Keller that California right of publicity claims were not subject to the Rogers test, but to the “transformative use” test – i.e., whether the defendant has sufficiently transformed the plaintiff’s persona in some expressive way.  The transformative use test provides far less First Amendment protection than the Rogers test because it is a multi-factor analysis that culminates in a question of fact.  That is much less useful to defendants looking to defeat a lawsuit on First Amendment grounds via a pre-trial motion. 

            The Ninth Circuit should not have treated the Brown and Keller cases differently.  Video game maker EA should have won both.

The Ninth Circuit said that Lanham Act claims are meant to protect against consumer confusion, while right of publicity claims are designed to protect celebrities’ interests in the value of their personas.  This distinction does not withstand scrutiny.  Courts and commentators have often referred to the Lanham Act as the federal equivalent to state right of publicity claims.  And a concern for individuals’ interests in the values of their personas animates many Lanham Act decisions in favor of celebrity plaintiffs.  (I’m looking at you Tom Waits!) Likewise, right of publicity claims have often been seen as vehicles to prevent opportunistic defendants from misleading the public into believing that celebrities endorse or are affiliated with defendants’ products bearing their name or likeness.  In other words, consumer confusion and the celebrity’s interest in the value of his or her name are two sides of the same coin.

            Moreover, even if Lanham Act claims and right of publicity claims did protect different interests, why would that justify providing right of publicity defendants with a watered-down version of First Amendment protection?  The Ninth Circuit failed to answer that question, or even acknowledge that it requires an answer.  This is especially frustrating given the well-recognized – indeed, paramount – importance of First Amendment speech rights.

            That failure – along with some contrary decisions from other jurisdictions applying the Rogers test to state right of publicity claims – may lead to en banc review in the Ninth Circuit or, perhaps eventually, review by the Supreme Court.

            In the meantime, the Keller decision encourages plaintiffs to change the label on their claims from “Lanham Act” to “right of publicity.”  Such a facile sidestep offends the First Amendment.  

It will also further encourage and exacerbate the patchwork of state right of publicity laws and rulings – a legal regime that is particularly unsuited for the 21^st century and modern technologies such as the Internet.  The result is a potential minefield for content creators and distributors as JP Jassy and I explained in this article advocating a federal right of publicity statute that would preempt state right of publicity laws.

Guest blogger Kevin Vick is my partner at Bostwick & Jassy LLP, a stellar lawyer and all around good guy.  Here is his bio.  - JP Jassy

Congressman's office denies threatening blogger, but questions persist

According to the Daily Dot, the office of Congressman Mike Rogers (R-MI) denies threatening blogger Mike Masnick with a defamation claim.  See my last post for an explanation of why such a claim was not viable, even if it were threatened and the threat were carried out.

There are a few problems with the denial.  First, it identifies the reporter that Rogers' staff purportedly did not tell about the threat.  But, when Masnick went public with the threat, he didn't identify the reporter.  Basically, Rogers' office is saying "we didn't tell the guy you didn't name the thing you said we said."  That seems off.

Next, Rogers' office is basically saying that the reporter who told Masnick about the threat is a liar.  Maybe they will find themselves on the other side of a defamation claim now?

Finally, the reporter declined to comment to the Daily Dot, but pointed them in the direction of Rogers' chief of staff, who has not yet responded to the Daily Dot as of "late" this afternoon.  If the chief of staff confirms the threat was made then Rogers' office will have a carton of eggs on its proverbial face.

Prominent blogger is told Congressman's staff threatened him with a defamation lawsuit

Yesterday afternoon, Mike Masnick, editor of the Techdirt blog, stated that staffers for Rep. Mike Rogers (R-MI) told a Michigan-based reporter that Rogers, "could sue [Masnick] for defamation concerning things [he'd] said about Rogers."  On Twitter, Masnick stated that Rogers' office was "telling reporters that they want to sue me for defamation."

I asked Rogers via Twitter to confirm whether his office threatened Masnick, and, if so, what the basis for that threat was.  I got no response.  I also called Rogers' DC and Michigan offices after 9am local time this morning, but did not reach anyone who was able to answer my questions.  If the threat is genuine, it sure is tough to figure out what it could be based on.  Nevertheless, I tried to figure it out ...

Michigan has a one year statute of limitations for defamation claims.  So, I went through Masnick's Techdirt posts in the past year that concerned Rogers.  To me, they look like constitutionally protected opinion, or, to the extent they reflect any statements of fact, Rogers (as a public official) would have a very difficult time proving the requisite actual malice (knowledge of falsity or reckless disregard for the truth) even assuming any underlying factual assertions were false, which he would also have to prove. 

The most recent Masnick post about Rogers was an opinion piece from July 25 excoriating Rogers, who is Chair of the House Intelligence Committee, for his stance against the Amash Amendment that would have defunded sweeping portions of the NSA surveillance program, and for concluding a speech with what Masnick called the "obnoxious" suggestion that those in support of the Amash Amendment were only voting that way because of "Facebook likes."  I see no potential defamation claim there.  Instead, I see constitutionally protected opinion and some statements of fact tied back to a video of Rogers' speech embedded in the post.

Another story from a few months ago highlighted Rogers' purported conflict of interest in pushing for legislation that supposedly would benefit his wife's former company.  Saying a politician has a conflict of interest is, unless based on false information, protected opinion.  Saying it in the context of a heated debate about the merits of proposed legislation gets even further protection as the First Amendment's highest purpose is to protect political speech.  Furthermore, Rogers (a public official) and his wife (a public figure by virtue, at a minimum, of her marriage to Rogers) would have a hard time proving actual malice (as all public figures do) even if they could show that underlying statements were false. 

In another post, Masnick recounted the extraordinary backlash Rogers received from scores of people on Twitter when Rogers suggested that the only people opposed to the enormously unpopular CISPA cybersecurity legislation he championed were "14-year-olds in their basement."  Masnick also wrote an opinion piece deriding Rogers for that same comment.

Finally, Masnick shuddered at the thought that Rogers might be named the next director of the FBI.  Opinion.  Full stop.

I don't know whether Rogers endorsed any threats (veiled or otherwise) to sue Masnick for defamation, but the prospect that he did is disturbing.  Rogers is a powerful man.  He is in charge of the House Intelligence Committee in a time where more and more people are afraid of the power their Government holds over intelligence gathering methods. 

The threat of a defamation suit often stops speakers cold in their tracks.  It doesn't seem like Masnick has had that reaction, but it also looks like he has tougher skin than most (perhaps tougher than Rogers and/or his staff anyway).  In a tweet this morning, Masnick emphasized that the Rogers staff only said they "*could* [sue] likely knowing it would get back" to Masnick, but Masnick "doubts they're serious."

Let's hope: (a) there was some miscommunication about a threat to sue; or (b) any such threat was not serious.  It would be unbecoming for Rogers or his staff to threaten Masnick with a defamation suit.  To actually sue would be unseemly.

To Alpha, NJ: Cities cannot bring defamation suits. So cut it out.

Dear Borough of Alpha, New Jersey:

I've never visited you, but from your website, you look like a lovely Garden State enclave.  Now, please show some respect for the First Amendment.

Last week, you sued a few anonymous online commentators for defamation.  The suit claims that "Save Alpha" and others slandered the "good name, reputation and public standing" of the "Borough of Alpha."  Your suit wants to end future criticism and interference with borough business.

Here's the problem:  government bodies (like you) cannot sue for defamation. 

There used to be laws to prevent criticism of the King of England.  Then we had a Revolution.  Remember that?  Your State played an honorable role in challenging the royal prerogative to be free from critical examination.

Then, in 1798, Congress made the mistake of passing the Sedition Act, which made it a crime to publish "any false, scandalous and malicious writing ... against the government ... with intent to defame ... or to bring [it] ... into contempt or disrepute, or to excite against [it] ... the hatred of the good people of the United States."  That law, which expired hundreds of years ago, is deep in the dustbin of history.

Nearly fifty years ago, the US Supreme Court held that, "although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history," due to a "broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment."

Your suit claims that your Borough was defamed by citizens' comments concerning the way Alpha functions (or fails to function).  But, I don't care what you think defamed you.  It really doesn't matter because the rule is clear.  In this country, the King cannot sue for defamation.  Neither can the US Government.  Nor can you.  You simply don't have a "reputation" that can possibly outweigh the First Amendment.

I know some of your city council members also sued.  As public officials, they have a low probability of success because of the high burdens they must satisfy in a defamation case.  I highly doubt that their suit will work out for them, but there is no question your suit is garbage.

Yours truly,
Jean-Paul Jassy

The NSA surveillance program's threats to the First Amendment

Yesterday, the House voted 217-205 not to stop the NSA's Internet surveillance program that collects vast amounts of phone and email communications from millions of Americans.  The program has many folks worried about threats to privacy rights and the Fourth Amendment.  But, the program threatens First Amendment rights, too.  Here's how:

(1)   No more anonymous speech

The First Amendment protects America's rich tradition of anonymous speech.  Benjamin Franklin and Thomas Jefferson used pseudonyms.  Alexander Hamilton, James Madison and John Jay wrote the Federalist Papers, which advocated the ratification of the Constitution itself, under fictitious names.  

It is often because of an overbearing government that individuals rightly choose to keep their identities veiled.

But, that choice is removed when the Government asserts the authority to gather everything transmitted over the Internet.  Imagine if the Redcoats could find Junius, a still unidentified but highly influential, pamphleteer whose treasonous columns were widely reprinted in pre-Revolutionary War newspapers. 

So long as we all keep using phones, email and social media -- and we will -- our speech is not truly anonymous, at least not from the eyes and ears of the NSA. 

(2)   Chilling speech and the receipt of speech

I put the words "al Qaeda" in a previous post.  And I just used those words again.  I am probably on a list somewhere now, and so are you for reading this.  Don't bother leaving.  I'm sure it's too late.

Reports show that some people already are more careful about what they say and how they use the Internet because of the NSA program.  That means speech is being chilled, and when speech is chilled it also is not being heard or read.  Chilled speech is bad for the First Amendment because it is bad for a society that prides itself on open dialogue.

The law in this area is less than ideal.  The Supreme Court recognizes the dangers of chilled speech, but a closely-divided (5-4) decision from 1972, Laird v. Tatum, held that an Army surveillance system designed to control civilian protests did not violate the First Amendment.  In the 21st Century, the Ninth Circuit held that a class action could proceed against the Government for warrantless wiretapping, while the Sixth Circuit held that plaintiffs in a similar case could not proceed. 

(3)   Threats to a free and independent press

I'm going to lump a few government overreaches together for this part.  First, reporters undoubtedly are caught up in the NSA dragnet.  But, we also know now that the Department of Justice was spying on Associated Press and Fox News reporters, getting their emails and phone records and who knows what else. 

A democracy depends on an independent press serving as a watchdog on government.  It is one thing for agencies to operate in secret (we know that has to happen to get certain things done), but secretly spying on the press is another story.  If the Government is spying on the press -- even as part of a broader program -- it is compromising the independence and freedom of the press to gather and report on a host of important matters, particularly the functioning of the Government itself.

(4)   Infringing on the right of association
       
In 1958, the Supreme Court rejected Alabama's effort to get the membership rolls for the NAACP, establishing a right to association rooted in the First Amendment:  "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the ... freedom of speech."

Today, the NSA could figure out the NAACP's membership rolls by accessing listervs, phone records, emails or whatever else might be available as part of its surveillance program.  And here's the really scary part: the NAACP would never know. 

At least Alabama's strong arm tactics were transparent.

Climate change on trial in a defamation case

A modern-day Scopes Monkey Trial is unfolding in a District of Columbia defamation case.

In 1925, two of the most famous lawyers of the time, Clarence Darrow and William Jennings Bryan, argued over whether John T. Scopes should have been prosecuted for teaching evolution in public school.  Scopes was convicted and fined $100, although the conviction was later overturned on a technicality.

Now, Pennsylvania State University climatology professor Michael Mann, a prominent researcher in the study of global warming, is in a legal fight with the Competitive Enterprise Institute (CEI) over his climate change research.  As today's article from Onward State explains, CEI accused Mann of manipulating data regarding the connection between human behavior and global warming.  Penn State investigated the allegations and exonerated Mann, as did British authorities and the EPA.

In an editorial published just after the release of the Freeh report on the Sandusky sexual abuse scandal at Penn State, CEI labeled Penn State's internal investigation of the Mann issue "hogwash," called for a new investigation, and stated that "Mann could be said to be the Jerry Sandusky of climate science, except for instead of molesting children, he molested and tortured data."

Then, an online National Review piece by Mark Steyn, linked to the CEI editorial and wrote that he was "not sure" he would have "extended that metaphor all the way into the locker-room showers with quite the zeal" as the CEI editorial, but that the CEI piece "has a point" as Penn State's internal investigation was a "joke."  The National Review post also states that Mann "was the man behind the fraudulent climate-change 'hockey-stick' graph, the very ringmaster of the tree-ring circus."  (The "hockey stick" refers to the sharp rise in global temperatures, when represented on a graph, over the past 150 years.)

Mann sued CEI and National Review for defamation in the District of Columbia.

On Friday, July 19, the Court denied National Review's special motion to dismiss Mann's case under D.C.'s anti-SLAPP statute.  In its ruling, the Court rejected arguments that the National Review piece was constitutionally protected opinion, rhetorical hyperbole or fair comment because, according to the Court, it was "something more than brutally honest commentary." 

The Court held that "to call [Mann's] work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff's work has been investigated and substantiated on numerous occasions)."

The Court went on to hold that National Review's statements were "based on provably false facts," which means Mann's case must proceed, presumably so the truth or falsity of the facts can be "proven."

Setting aside that the text and tenor of the National Review article smells strongly of opinion (i.e., that the Court's decision was simply wrong), the ruling begs the question:  is the evidence supporting climate change going to get its day in court?  And, is this how it happens ... in a defamation case?  Yes, that's what we're looking at.

In 2009, the US Chamber of Commerce demanded that the EPA hold a "trial" on climate change,  conjuring up the ghost of Mr. Scopes by labeling it, "the Scopes monkey trial of the 21st century."  The EPA didn't bite; but, the Chamber may now get its wish.

The case could be narrowed to whether National Review and CEI falsely stated that Mann distorted data and their respective states of mind at the time of the purportedly defamatory publications, but both sides seem poised to tackle the broader issues of climate change in order to bolster their positions.

That's what happened in 1925:  it wasn't simply whether Scopes taught evolution, it was whether there was a real basis for doing so.

This could be a lot more than just a run-of-the-mill defamation case ...

Playwright Threatened With Bogus Suit Re "Killing Fields" Actor

An article today in the Los Angeles Times reports that playwright Henry Ong is being threatened with a lawsuit by the estate of Academy award winning actor Haing S. Ngor.  The threatened suit has no merit and Ngor's estate should give it up.

Ngor, a gynecologist, survived the dictatorship of Pol Pot in Cambodia and later won an Oscar for his role portraying a journalist in "The Killing Fields," a 1984 movie about the Khmer Rouge regime.  Ong wrote a play, "Sweet Karma," about a "Dr. Vichear Lam" that is based on Ngor's life.  Promotions for the play avoid using Ngor's photographic likeness.

In the play, "Dr. Lam" is depicted as, among other things, an adulterer who has sex with a patient.  Ong says the play is based on published accounts about Ngor and interviews with people close to Ngor.

Without providing details, a representative of Ngor's estate told the LA Times that "legal action" against Ong is "imminently pending."

Bad idea.

Dead people -- or, rather, the estates of dead people -- cannot sue for defamation.  That is well-established in the law, particularly in California.

A more likely scenario is a suit alleging a violation of Ngor's right of publicity.  Dead people -- I mean the heirs of dead people -- can sue for that in California, but the law permitting such suits expressly excludes plays. 

Plays are fully protected by the First Amendment, particularly when they recount facts.  Setting aside defamation concerns, the First Amendment also protects references to real persons in fictional stories.  For example, the California Supreme Court held that the use of Rudolph Valentino's name in a fictionalized film was protected.   The law also protects the use of real persons in works that blend fact and fiction for dramatic impact.

The show must go on for "Sweet Karma".

Bad News for Bradley Manning Means Bad News For First Amendment

This morning, a military judge refused to dismiss the charge against Bradley Manning for "aiding the enemy" when he disclosed classified information to WikiLeaks  That is bad news for Manning.  It is also bad news for the First Amendment.  Here's why ...

A New York Times article gives a good account of this morning's events.  The Government's argument boils down to this:  Manning was "aiding" al Qaeda because he disclosed information to WikiLeaks, which is on the Internet, and al Qaeda has access to the Internet.  That's it.  That's flimsy.

Under military regulations, "aiding the enemy" applies to “any person who ... gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly,” whether or not the "intelligence" is classified.  That means any time anyone in the military with any information shares that information on the Internet in any context, that person could be prosecuted because the information might be accessed by the enemy. 

On the other hand, it also might be accessed by the public and press, leading to needed changes in our system.

Manning's defense lawyers argued that Manning was not "aiding the enemy" because he was trying to share information with a media outlet (WikiLeaks) and "spark" debate and reform.  Well, the former certainly happened.  The jury is still out on the latter.  See my previous post on the subject. 

The bar should be higher -- e.g., proof that harm was imminent or actually occurred (see another post of mine on a related subject) or at least some proof that the enemy actually received/accessed the material.

According to an excellent blog post by Ben Wizner of the ACLU, over a thousand active duty members of the military maintain blogs.  What is happening to Manning better be a wake up call to those members not to discuss anything that has anything to do with the military because whatever they say might be accessed by the enemy.

The military traditionally has a lot of control over its members' speech.  This makes sense in the heat of battle, but when it comes to retrospective looks at policy positions and simply embarrassing information (i.e. most of what Manning disclosed), it makes much less, if any, sense at all.

Asiana decides NOT to sue KTVU

According to a report from Reuters this morning, Asiana Airlines has come to its senses.  

Asiana executives have changed their minds, and will not sue KTVU for its report on July 12 that erroneously identified the pilots of Asiana Flight 214 with offensive names.  

Reuters reports that Asiana's statement reads:  “Asiana Airlines has decided not to proceed with the case since KTVU has issued a formal apology and in order for us to focus all our efforts on managing the aftermath of the accident."

KTVU did the right thing by promptly apologizing for its erroneous report.  Asiana threatened to sue after KTVU apologized.

Today, Asiana did the right thing by deciding not to sue ... even though it should never have made the threat in the first place because it had no basis to sue and KTVU had already apologized.  See my post of July 15. 

What Results of Today's First Amendment Survey Mean

Earlier today, the First Amendment Center put out its excellent annual report on the State of the First Amendment.  Let's take a look at some of its results and what they mean in real world terms.

When over 1,000 American adults were asked about "the single most important" freedom we have, 47% said freedom of speech (with freedom of religion coming in second at 10%).  Great!  But, 34% believe "that the First Amendment goes too far in the rights it guarantees."  This is a big jump from last year when only 13% agreed with that statement.  Not great; although, it is not clear from the Report what "going too far" really means.

The report notes that, in the past 15 years of polling, there have been two marked jumps in the view that the First Amendment "goes too far": after the September 2001 terrorist attacks and now (this year's survey was conducted in May 2013, shortly after the Boston Marathon bombings).  This is a potent reminder that the value Americans place on even our most cherished freedoms may fluctuate because of fear.  

This fear may be reflected in other ways.  As compared with five years ago, more Americans (44% today vs. 37% in 2008) believe that journalists should "be required to reveal their confidential sources to make America safer."  A majority (51%) of Americans still disagree with forcing journalists to reveal their sources under such circumstances.  This poll was conducted in May 2013, before Edward Snowden asked to be revealed on June 9 as the source of massive NSA leaks. 

Although only 1% identified freedom of the press as the right they hold most dear, the Report shows the perceived level of bias in the media is at its lowest point since 2004.  That is encouraging, but surprising considering how often we hear about alleged bias in the media.

And, it is tempered by another statistic: a whopping 74% of Americans get "most" of their news from media sources whose "views" are in line with their own.  Perhaps that means Americans perceive less bias simply because they exercise their own bias in choosing their unbiased news sources.
  

Honking and flashing headlights = free speech

Two cool articles published today raise an offbeat First Amendment issue: can you exercise First Amendment rights with your car?  Yes, you can.

Emily Foxhall of the Los Angeles Times wrote today about an incident yesterday where a motorist, Nick Silverman, was ticketed by the Los Angeles Police Department for honking his horn to show his support for people protesting the verdict in the George Zimmerman trial.  Apparently, the ticket actually states that Silverman was "honking to support protestors."  It also states that he honked "excessively," but he says he only honked once. 

In 2011, the Washington Supreme Court struck down an overbroad law that restricted honking, holding that honking can be a form of protected speech under the First Amendment.  That kind of precedent makes sense as the U.S. Supreme Court consistently recognizes conduct that communicates (e.g., flag burning) as a form of speech.  Silverman's honk in support of protestors is protected as well.

In another piece published today, Amy E. Feldman of Constitution Daily reports that individuals in Utah, Florida and Tennessee successfully disputed citations for obstructing justice when they flashed their headlights to warn oncoming drivers of a speed trap ahead.  These courts found that the flashing headlights were a form of speech. 

Asiana's absurd threat to sue TV station for defamation

Asiana Airlines announced this morning that it will sue KTVU, a San Francisco Bay Area television station, for incorrectly reporting the names of the pilots of Asiana Flight 214 that crashed July 6.  A lawsuit would be beyond ridiculous and has no basis in the law.

On Friday, July 12, an anchor on KTVU reported, while showing a graphic onscreen, that the names of the pilots on Asiana's Flight 214 were "Sum Ting Wong", "Wi Tu Lo," "Ho Lee Fuk," and "Bang Ding Ow."  It is not clear how KTVU got these fake and offensive names, but they were actually confirmed by an intern at the National Transportation Safety Board (NTSB).  The station and NTSB have already apologized for the error.

Asiana now threatens to sue for defamation, claiming that its reputation was harmed by the broadcast.  Twitter is bursting with comments that carry the same basic theme:  it was the plane crash that hurt your reputation, not KTVU's broadcast.

The names were offensive, and someone was playing a prank, but let me be very clear:  Asiana has no lawsuit here.

First, there is no harm, at least none Asiana would ever be able to show in court.  The broadcast was promptly corrected.  People are not going to stop flying Asiana because it supposedly employs a captain named "Sum Ting Wong," but they may well stop because of a crash landing.  Asiana would have to prove that they suffered harm because of KTVU's broadcast separate and apart from the crash.  No chance that will work.

Second, Asiana -- which is undoubtedly a public figure because, among other things, it advertises extensively and is heavily regulated by governments across the globe -- would have to prove actual malice (i.e., that KTVU knew or had reckless disregard for the truth or falsity of its broadcast).  Asiana will not satisfy that burden, which requires clear and convincing evidence.  KTVU confirmed the names with the NTSB and then promptly corrected the error.  Those two things alone gut any possible showing of actual malice.

Third, a prank is not a statement of fact and a defamation claim requires a statement of fact.

There is more that could be written, but let's wait and see if Asiana follows through on its threat before wasting more time on this nonsense.

Cameras in courtrooms, like in Zimmerman's trial, should be the norm

The trials of George Zimmerman, Casey Anthony and Ted Bundy, as well as the 2000 election saga ... what do they all have in common?  They were televised in the Florida state courts.  Whatever you think of the outcomes in those matters, the Sunshine State, true to its name, leads the way in shedding light on its judicial proceedings.

More than once, I have worked to convince a judge that having cameras in the courtroom is a good thing.  "But it will disturb the decorum of the courtroom."  No, cameras now are unobtrusive and silent, and often media companies will pool resources to use just one camera.  "It will turn the courtroom into a circus."  No, your honor, I'm sure you won't let that happen.  "It will make the witnesses feel uncomfortable."  Studies show that witnesses forget the cameras are there after a few minutes.  "It will make the lawyers grandstand."  That will or won't happen either way, and your honor can keep that in check.

The basic point:  the First Amendment gives a right for the public to attend trials in person, so why not extend that right to a broader audience via cameras?  Florida takes this approach, and attracts a lot of attention for its cases.

And, we watch right?  So many folks want to see what happens next.  As they do, the public learns about our justice system from watching, and also from listening to pundits who have actually seen the proceedings.

In California, there is a 19 factor test a state court judge must consider before a camera comes into the courtroom.  Yes, you read that right ... 19 factors.

In federal court, aside from a handful of pilot programs, judges have even less discretion.  Judge Vaughn Walker wanted to televise the Prop. 8 trial, but the US Supreme Court stopped him.  So much for giving judges control over their own courtrooms.

Meanwhile, C-SPAN reports that a majority of the Supreme Court refuses to allow cameras in the Supreme Court itself. 

Get over it.  Cameras in the courtroom inform and educate.  They teach us about the triumphs and failings in our justice system.  They are consistent with a free press and a free society.

Further reading:  For an excellent and scholarly look at cameras in the court, read this article by Mickey Osterreicher of the National Press Photographers Association.

Reaffirming Need for a Federal Reporter's Shield Law

One of the bright spots in yesterday's DOJ report on how it will be nicer to the media was the Obama Administration's reaffirmation of the need for a federal reporter's shield law.  Why is this important? 

A federal reporter's shield law will provide protection for reporters when they are investigated by federal agencies and called upon to testify or produce their materials in the federal courts. 

In order to have a truly free press that is able to keep its eye on the government and report on public affairs, reporters should not be made a tool of the government (via subpoenas or otherwise) and their sources, processes and unpublished work should remain confidential except in the rarest of circumstances.

Forty states plus the District of Columbia have a codified shield law (i.e., a written statute) and another nine states have case law recognizing at least some protection for reporters.  Most federal circuit courts also recognize at least some protections for journalists, rooted in a proper understanding of the First Amendment, but some federal courts do not recognize such protections. 

What does this mean?

Here is an illustration ... picture a reporter who is subpoenaed to reveal a confidential source before a state courthouse in one case and is simultaneously subpoenaed to reveal the same information in a federal courthouse in another case.  Even if those courthouses are across the street from one another, the reporter could lawfully resist the disclosure of subpoenaed information in the state courthouse; but be required to testify under the threat of being held in contempt of court in the federal courthouse.

Does that make sense when the reporter's shield is rooted in First Amendment principles?  No, it does not.  

It is time for every journalist to have at least some protection in every courthouse throughout the country.

Kudos to the Obama Administration for reaffirming the need for Congress to pass a federal reporter's shield law.  Previous iterations of such a bill passed the House overwhelmingly (398 to 21) as well as the Senate Judiciary Committee.  Now it is time for Congress to kick into gear a stalled effort on a federal shield law to protect reporters nationwide.

Further reading: a good analysis of the degree to which the DOJ Report is moving generally in the right direction was put together by Brian Fung of the National Journal and can be found here.